Remuneration and how it drives your culture – takeaways for all organisations from the Royal Commission

There have been many articles published in the last week or so about the recommendations handed down by Commissioner Hayne in his report following the Banking Royal Commission (Report). Our colleagues at McCabe Curwood posted an article last week about some of the likely impacts, particularly in terms of how ASIC will approach litigation and other enforcement action moving forward.

 

There are of course many themes arising from the Report. Culture, remuneration and governance feature highly and are inextricably linked. In this article we will look at the issues and recommendations in so far as how culture, including how employees are remunerated, has allowed misconduct to occur. It is clear that many of the areas of concern, the risks and the recommendations identified in the Report could apply far beyond the financial services sector. They can apply equally to any organisation with a sales business.

Understanding organisational culture

But what is a ‘’culture’’? What is a ‘’good’’ or ‘’bad’’ culture? How can organisations ensure they drive a positive culture which successfully balances the wellbeing of employees, shareholder return and customers’ interests?

The Report considers what is ‘‘culture’’? It states:1

“The culture of an entity can be described as the ‘shared values and norms that shape behaviours and mindsets’ within the entity.2 It has been described as ‘what people do when no‑one is watching’ 3 and that description captures what might be called the essentially ‘internalised’ or ‘instinctive’ application of shared values and norms. The shared values and norms can be seen as both reflecting and constituting the culture of an entity. It is evident that culture can drive or discourage misconduct.”

Although there are obviously many different elements that make up a ‘’culture’’, it is ultimately shaped by the people who work in an organisation and the behaviours they display. How certain behaviours are recognised and encouraged can therefore have a significant impact on culture. It would be naïve to think that ‘’culture’’ doesn’t affect your business. It translates into tangible financial benefits through employee attraction and retention, customer satisfaction and ultimately, shareholder value.

It is also clear that culture needs to be led from top down, from the Board, senior management and line management, working with human resources teams, their risk and compliance teams and internal and external audit. A strong positive culture requires integrity at all levels of management. It’s all very well having company values, but if they are not being lived and breathed in an organisation it breeds a culture of mistrust at best and potential misconduct at worst. However, “that tone must also be echoed from the bottom and reinforced at every level of the entity’s management and supervision.”4

The effects of remuneration structure on organisational culture   

The Australian Securities and Investments Commission (ASIC) identified as key risks in 2017-2018, culture and conduct in financial services resulting in poor outcomes for investors and consumers.5 ASIC considers that poor culture can drive poor conduct. That is very much borne out in the Report. One of the key issues arising out of the Royal Commission was that the way in which remuneration structures were designed and operated, such that they drove poor behaviours and, on many occasions, instances of misconduct. In a world where we have to be increasingly customer-centric but at the same time maintain and grow revenue, how should employees be incentivised to perform? We know that recognising employees is one of if not the most powerful ways in which organisations can positively impact most aspects of workplace culture. But it does not need to be and in fact can be counter-productive to only recognise financial performance.

Balancing fixed and variable remuneration

There is much discussion and debate within the Report about how to balance fixed versus variable remuneration, both at senior executive level and for front line staff. The Reports states:

“remuneration and incentives, especially variable remuneration programs tell staff what the entity rewards. Hence, remuneration and incentives tell staff what the entity values. Remuneration both affects and reflects culture. As the Commission’s work has shown, and is now not disputed, poor remuneration and incentive programs can lead, and have led, to poor customer outcomes.” 6

The Report also discusses the need for variable remuneration structures to be designed to promote ethical behaviour and compliance with laws and standards, and that they should be implemented so as to manage the risk of misconduct. Design and  implementation must each stand up to scrutiny.

The Report concludes that one method of remunerating employee is not preferable to another and neither is a particular percentage of one over another. However, with variable remuneration, there clearly needs to be much more focus on the ‘‘how’’ not just the ‘‘what’’. The findings of the Royal Commission highlight that there needs to be a move away from not just focusing on the outcome but how you got there. We are seeing a growing trend away from reward (still an important factor in motivating employees) being based on financial metrics. The Sedgwick Report7 in April 2017, made 21 recommendations arising out of Mr Sedgwick’s independent review of product sales commissions and product-based payments in retail banking in Australia. The recommendations were that incentives should no longer be paid to any retail bank staff based directly or solely on sales performance. Rather, eligibility to receive any personal incentive payments should be based on an assessment of that individual’s contribution across a range of measures of which sales (if included at all), should not be the dominant component and the maximum available payments should be scaled back significantly for some roles.

Some of the considerations posed by the Report are:


  • Is part or all of the variable remuneration to be paid unless there are disqualifying reasons?
  • Or is part of all of it be paid only if certain conditions are met?8
  • In the case of deferred reward, does the structure allow for unvested portions to be re-clawed?
  • In the case of deferred reward, does the structure allow for vested portions to be re-clawed?
The Report notes that the remuneration arrangements examined by the Royal Commission generally allowed for the board to take the decision to forfeit part or all of the unvested portion of deferred renumeration but rarely provided for remuneration that has vested to be clawed back. Hayne is clear in his views that organisations should build in clawback arrangements for the vested portions of deferred remuneration so that in circumstances of later discovered misconduct, the organisation has some come back.

At senior executive level Hayne concludes that “if the board reduces the variable remuneration of executives for their poor management of non-financial risk, and tells other staff that the variable remuneration of those who are accountable for particular events or forms of conduct has been reduced, it sends a clear message to all staff about accountability and what kinds of conduct the board regards as unacceptable”.9

At frontline staff level similar issues exist. Despite some organisations moving away from focusing just on the “what” to the “how” and the “what”, there remains too much focus on the “what”. An example of this is when you unpack the ‘‘discretionary effort’’ applied by an employee as assessed, to find it is actually just a euphemism for selling the [bank’s] products10. This could apply to so many businesses and their remuneration structures. Although many organisations have balanced scorecards, the question is whether there are the right behavioural metrics embedded or whether they are they just using a different set of outcome metrics that would not stand up to scrutiny and ensure the right outcomes

Individual v group component in incentives

What has been reported as having some success is the approach of moving away from allocating variable remuneration or at least some of the variable remuneration on an individual basis to a model that rewards group performance. For ANZ, this is an approach that they have applied at many levels of the organisation as part of a pilot program, from call centre staff, branch staff, operational staff, customer complaint staff and technology staff. The results are apparently ‘’encouraging’’11. It was reported by the ANZ that there had been no diminution in business performance and that the staff say they prefer it.  It is said to encourage better team work, better utilisation of staff expertise and experience and better education between staff. There are no doubt downsides. Our minds turn to the staff member who is not a team player, who lets others down and then causes resentment to breed within the team.  No structure is perfect at the end of the day, but what is clear is that the tide is changing. It would seem we are almost going full circle back to a service versus sales model but there needs to be balance.

Significance for Organisations

In light of the Report and the focus on corporate culture, remuneration and governance, there is a lot of work to do. All organisations would be wise to revisit their remuneration structures, particularly the variable ones. Do they work? Do they need to be updated or undergo a complete overhaul? What type of culture are they driving? Do they promote putting the customers’ interests first?

Whether you have commission plans, short term incentive plans, long term incentive plans, discretionary bonus schemes or other, the Employment and Corporate teams at McCabe Curwood are well versed in these areas and can assist with audits, reviews, overhauls and recommendations on a range of incentive arrangements, whether that be an executive or frontline level. We also have experience across the Employment and Corporate teams in preparing employee incentive scheme documentation.


1 Final Report, Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, 4 February 2019, p334
2 Cf CBA Prudential Inquiry, Final Report, 81. I deliberately omit reference to a ‘system’ of shared values and norms if only to emphasise that culture is observed and described, not created apart from, or imposed on, the entity.
3 G30, Banking Conduct and Culture: A Call for Sustained and Comprehensive Reform, July 2015, 17.
4 Final Report, Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, 4 February 2019, p335
5 Australian Securities and Investments Commission, ‘ASIC’s Corporate Plan 2017-18 to 2020-21’, August 2017.
6 Final Report, Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, 4 February 2019, p335
7 Retail Banking Remuneration Review Report, Stephen Sedgwick AO, 19 April 2017
8 Final Report, Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, 4 February 2019, p352
9 Ibid, p 366
10 Ibid, p 368
11 Ibid, p 374, evidence of Mr Elliott of ANZ